Schneider v. Hawkins

• Decision Date: 17 December 1940
• Docket Number: 48.
• Citation: 16 A.2d 861,179 Md. 21
• Parties: SCHNEIDER v. HAWKINS et al.
• Court: Maryland Court of Appeals

16 A.2d 861

179 Md. 21

SCHNEIDER v. HAWKINS et al.

No. 48.

Court of Appeals of Maryland

December 17, 1940

Appeal from Orphans' Court of Baltimore County; George A Gegner, Gilbert G. Miller and John W. Bishop, Judges.

Proceedings by Joseph M. Hawkins and another and by Frederick F Schneider, for letters of administration on the estate of Albert Linz, deceased. From an order denying the application of Frederick F. Schneider after appointment of applicants Hawkins and another as administrators, applicant Schneider appeals.

Affirmed.

Robert E. Kanode, of Baltimore, for appellant.

Randolph Barton, Jr., of Baltimore (H. Courtenay Jenifer and James D C. Downes, both of Towson, on the brief), for appellees.

Argued before BOND, C.J., and PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

DELAPLAINE, Judge.

Frederick F. Schneider, German Consul, is appealing from an order of the Orphans' Court of Baltimore County refusing his application for letters of administration on the estate of Albert Linz, a German citizen, who resided in Catonsville and died on June 20, 1940.

On June 24 Joseph M. Hawkins and Oscar M. Grimes, the appellees presented an application alleging that Linz died intestate at the age of 84 leaving real and personal property in Baltimore County but no heirs or next of kin anywhere in the State of Maryland; that for a number of years he had sought their advice regarding investments and the management of his property; and moreover had expressed the wish that after his death they would settle his estate.

Later that day Consul Schneider filed his petition alleging that Linz had immigrated to this State more than fifty years ago, but had never applied for naturalization as an American citizen; and while he has no heirs or next of kin within the United States, he is survived by collateral relatives in Germany. He claims that under the provisions of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed in Washington on December 8, 1923, and proclaimed by President Coolidge on October 14, 1925, 44 Stat. 2132, he is entitled to letters on this estate by virtue of his office as Consul of the German government accredited to the Consulate District comprising the State of Maryland.

On the same day, after both petitions had been filed, the Orphans' Court appointed the appellees and ordered them to give bond in the sum of $2,000. On June 25 the Court passed an order refusing the application of the appellant.

Under the Maryland testamentary statute, it is not necessary to give notice to a party entitled to administration if he be out of the State. Code, art. 93, sec. 33. The statute also provides: 'If there shall be neither husband, nor wife, nor child, nor grandchild, nor father, nor brother, nor sister, nor mother, or if these be incapable, or decline, or refuse to appear on proper summons or notice, or if other relations and creditors shall neglect to apply, administration may be granted at the discretion of the court.' Code, art. 93, sec. 32. When a person dies intestate and leaves no relatives residing within the State, the Orphans' Court has authority to grant letters of administration to some one not related to the deceased, and such letters are not subject to revocation except in case of fraud or mistake. If no relatives are living in the State and no creditor applies for letters, the Orphans' Court has the undoubted right to use its discretion in appointing an administrator, and its discretion is not reviewable by the Court of Appeals. Georgetown College v. Browne, 34 Md. 450, 458, 459; Williams v. Addison, 93 Md. 41, 47, 48 A. 458, 460; Jones v. Harbaugh, 93 Md. 269, 274, 275, 48 A. 827, 829.

The question in this case is whether the Treaty with Germany supersedes the statutory law of Maryland by divesting the Orphans' Court of its discretion. The powers and duties of consuls rest upon the law of nations as well as upon treaties. The authority of a consul to protect the estates of his countrymen within his consulate from loss or waste is recognized by all civilized nations as inherent in the office of consul under the accepted principles of international law. 5 Moore, Digest of International Law, 117, 118, 123; 3 C.J.S., Ambassadors and Consuls, § 15. However, in the absence of treaty or statute, a consular officer of a foreign country has no right to administer upon an estate without judicial authorization. The United States government has the power under the Constitution, art. 2, sec. 2, to contract with a foreign country that its consuls shall administer the estates of its citizens dying intestate in the United States. Chief Justice Hughes has said: 'The treaty-making power is broad enough to cover all subjects that properly pertain to our foreign relations, * * * and the disposition of the property of aliens dying within the territory of the respective parties, is within the scope of that power, and any conflicting law of the state must yield.' Santovincenzo v. Egan, 284 U.S. 30, 40, 52 S.Ct. 81, 84, 76 L.Ed. 151, 155.

The Treaty with Germany provides: 'In case of the death of a national of either of the High Contracting Parties without will or testament, in the territory of the other High Contracting Party, the consular officer of the State of which the deceased was a national and within whose district the deceased made his home at the time of death, shall, so far as the laws of the country permit and pending the appointment of an administrator and until letters of administration have been granted, be deemed qualified to take charge of the property left by the decedent for the preservation and protection of the same. Such consular officer shall have the right to be appointed as administrator within the discretion of a tribunal or other agency controlling the administration of estates provided the laws of the place where the estate is administered so permit.' 44 Stat. 2132, 2153, art. 24.

It is clear from the language of the treaty that a consular officer of Germany has the right to be appointed as an administrator in the United States, provided (1) that the appointment is within the discretion of the Orphans' Court, and (2) that the appointment does not confiict with any law of the State. The term 'discretion' denotes freedom to act according to one's judgment in the absence of a hard and fast rule. When applied to public officials, 'discretion' is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience and uncontrolled by the judgment or conscience of others. 'Judicial discretion' is defined as the power of a court to determine a question upon fair judicial consideration with regard to what is right and equitable under the law and the circumstances, and directed by reason and conscience to a just result. Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520. When a court has authority to act 'within its discretion,' it is vested with power to decide as it considers proper, and its discretion is not subject to review by the Court of Appeals. Watson v. Cook, 170 Md. 377, 380, 184 A. 908. To hold that the exercise of discretion may be reviewed by a tribunal other than that upon which it is conferred would pervert and destroy the meaning of the word. Deeds v. Deeds, 108 Kan. 770, 196 P. 1109, 1110; State v. Tindell, 112 Kan. 256, 210 P. 619, 622.

But the German Consul claims that he has a paramount right to administration under the clause of the treaty providing that consular officers shall enjoy 'all the rights privileges, exemptions and immunities which are enjoyed by officers of the same grade of the most favored nation.' 44 Stat. 2147, art. 17. He relies upon the Convention between the United States...